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If the tommissioner commits the prisoner, his proceedings may be reviewed by the writ of habeas corpus.10

§ 490a. Extraditable offenses. The offenses for which persons within the United States may be extradited to foreign countries are enumerated in the respective treaties.

Where a treaty contains no definition of an offense therein mentioned what constitutes the crime is usually determined by the law of the State where the accused is found. It was held that, under the treaty between the United States and Austria-Hungary, forgery should have, in extradition proceedings, its common law definition. Where the treaty provides for extradition for acts "made criminal by the laws of both countries," an act made criminal by the law of the foreign country and the law of the State in which a fugitive is found. is extraditable, although it is not a crime against the United States. Absolute identity of the statutes in both countries is not required, provided that the transaction is by the law of both such an offense as the treaty describes.4

Extradition to Germany was denied upon a charge of the offense of forgery when the proof showed that the accused filled into a blank check endorsed by his partner a larger sum than he was authorized to write therein.5

Extradition was allowed for the offense of writing and selling without authority tickets of admission to performances by a company of players.6

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§ 490b. Complaint for extradition to a foreign country. The complaint may be made by any one authorized by the Executive of the foreign government. When made by a consul, his official

10 See § 462, supra.

§ 490a. 1 Wright v. Henkel, 190 U. S. 40, 23 S. Ct. 781, 47 L. ed. 948; Re Walshe, 125 Fed. 572; aff'd 194 U. S. 217, 24 S. Ct. 657, 48 L. ed. 938.

2 In Re Adutt, 55 Fed. 376. See, also, Cohn v. Jones, 100 Fed. 639; Re Ezeta, 62 Fed. 972; Re Cross, 43 Fed. 517; Re Windsor, 6 B. & S. 522, 10 Cox C. C. 118, 11 Jur. N. S. 807, 34 L. J. M. C. 163, 12 L. T. Rep. N. S. 307, 13 Wkly. Rep. 655,

118 E. C. L. 522; Reg. v. Phipps, 3 Can. L. T. 55.

3 Wright v. Henkel, 190 U. S. 40, 23 S. Ct. 781, 47 L. ed. 948; affirming 123 Fed. 463.

4 Ibid. See Re Farez, 7 Blatchf. 345, 8 Fed. Cas. No. 4,645, 2 Abb. U. S. 364, 40 How. Pr. (N. Y.) 107. 5 Ex parte Geissler, 196 Fed. 168, in which the author was counsel. 6 Ex parte Geissler, 196 Fed. 168. § 490b. 1 Re Ferrelle, 28 Fed. 878.

character is sufficient evidence of such authority. When made by a private individual, it must appear that he is acting under the authority of the foreign government. The complaint may precede the requisition. The complaint need not set forth the crime with the particularity of an indictment, provided that it sets forth the substance of the offense charged and clearly apprises the party of his accusation.5 Where the charge is forgery, the time, place and nature of the forgery should be specified.

§ 490c. Evidence upon applications for extradition to foreign countries. By the Act of June 6, 1900: "In every case of complaint and of a hearing upon the return of the warrant of arrest, any depositions, warrants, or other papers offered in evidence, shall be admitted and received for the purpose of such hearing if they shall be properly and legally authenticated so as to entitle them to be received as evidence of the criminality of the person so apprehended, by the tribunals of the foreign country from which the accused party shall have escaped, and copies of any such depositions, warrants or other papers, shall, if authenticated according to the law of such foreign country, be in like manner received as evidence; and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any such deposition, warrant or other paper, or copy thereof, is authenticated in the manner required by this section."1

By the Act of August 3, 1882: "In all cases where any depositions, warrants, or other papers or copies thereof shall be

2 Ornelas v. Ruiz, 161 U. S. 502, 16 S. Ct. 689, 40 L. ed. 787; Re Grin. 112 Fed. 790; affirmed in 187 U. S. 181, 23 S. Ct. 98, 47 L. ed. 130; Re Adutt, 55 Fed. 376.

3 Re Herres, 33 Fed. 165; Re Ferrelle, 28 Fed. 878; Commonwealth v. Deacon, 10 S. & R. (Pa.) 125.

4 Benson v. McMahon, 127 U. S. 457, 8 S. Ct. 240, 32 L. ed. 234; Re Adutt, 55 Fed. 376.

5 Grin v. Shine, 187 U. S. 181, 23 St. Ct. 98, 47 L. ed. 130; affirming 112 Fed. 790; Re Macdonnell, 11

Blatchf. 79, 16 Fed. Cas. No. 8,771;
Ex parte Van Hoven, 4 Dill. 411, 28
Fed. Cas. No. 16,858. See, also, Re
Adutt, 55 Fed. 376.

6 Re Farez, 7 Blatchf. 345, 8 Fed. Cas. No. 4,645, 2 Abb. U. S. 364, 40 How. Pr. (N. Y.) 107. See Re Charleston, 34 Fed. 531; Re Nonrich, 5 Blatchf. 414, 11 Fed. Cas. No. 6,369. See 19 Cyc. 66.

§ 490c. 1 U. S. R. S., § 5271, 3 Fed. St. Ann. 76, Pierce Fed. Code, § 4010.

offered in evidence upon the hearing of any extradition case under Title Sixty-six of the Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant or other paper or copies thereof, so offered, are authenticated in the manner required by this act.

"2

The provisions of the Fifth and Sixth Amendments to the Federal Constitution do not apply to such proceedings.3 The accused need not be confronted with the witnesses against him.4 An authentication in the language of the statute is sufficient.5 It is sufficient if it recites that the papers "are properly and legally authenticated, so as to entitle them to be received in evidence for similar purposes" in the foreign country.

A conviction of the accused in contumaciam in his absence is treated only as a charge of a crime." If the laws of the foreign country permit, copies of depositions taken before a magistrate may be received as proof of criminality. Where the certificate of a minister to a foreign country stated that the documents were legally and properly authenticated, so as to entitle them to be received in evidence in support of the criminal charges therein mentioned and for similar purposes mentioned in the statute, and they were also authenticated by functionaries of the country to which he was committed as records of its tribunals; it was held that they should properly

2 Ibid., § 5, Pierce Fed. Code, § 4024.

3 Ex parte La Mantia, 206 Fed. 330.

4 Ex parte La Mantia, 206 Fed. 330.

5 Re Krejanker, 44 Fed. 482; Re Herres, 33 Fed. 165; Re Behrendt, 22 Fed. 699, 23 Blatchf. 40; Re

Wadge, 15 Fed. 864; Re Farez, 3
Fed. Cas. No. 4,645, 2 Abb. 364,
7 Blatchf. 345, 40 How. Pr. (N. Y.)
107; 10 Op. Atty. Gen. 501.
6 Re Breen, 73 Fed. 458.
also, Re Grin, 112 Fed. 790.

See,

7 Ex parte La Mantia, 206 Fed. 330.

8 Re Charleston, 34 Fed. 531.

be received in evidence, although the minister's certificate did. not state to what country he referred.9

Where the certificate was signed by a person describing himself as "charge d'affaires ad interim," the court took judicial notice that he was, when he gave the certificate, the principal diplomatic officer of the United States in the country where it was executed.10 It seems that it is not essential that each deposition should be separately certified, when the court can ascertain with reasonable certainty to what papers the certificate refers.11 The depositions need not be sworn to if the foreign law does not so require.12 Papers which purported to be depositions and were so certified, were held to be admissible, although, according to their recitals, they were statements and not depositions.18

"On the hearing of any case under a claim of extradition by foreign government, upon affidavit being filed by the person charged setting forth that there are witnesses whose evidence is material to his defense, that he cannot safely go to trial without them, what he expects to prove by each of them, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the judge or commissioner before whom such claim for extradition is heard may order that such witnesses be subponed; and in such cases the costs incurred by the process, and the fees of witnesses, shall be paid in the same manner that similar fees are paid in the case of witnesses subpoenaed in behalf of the United States." 14

* * *

A certificate that the depositions were authenticated so as "to enable them to be used in evidence, and as proof that the originals were duly received in evidence in proof of the criminality" of the accused, was held to be insufficient.15 It has been said that where the authentication of the officer of the United States does not comply with the statutory requirements,

9 Re Stupp, 12 Blatchf. 509, 23

Fed. Cas. No. 13,563.

10 Re Orpen, 86 Fed. 760.

11 Re Farez, 7 Blatchf. 345, 8 Fed. Cas. No. 4,645, 2 Abb. U. S. 364, 40 How. Pr. (N. Y.) 107. But see Re Henrich, 5 Blatchf. 414, 11 Fed. Cas. 6,369.

12 Ex parte La Mantia, 206 Fed. 330.

13 Re Ezeta, 62 Fed. 972.

14 Act of Aug. 3, 1882, 22 St. at L. 215, 3 Fed. St. Ann. 89, Comp. St., § 3593, § 2, Pierce Fed. Code, § 4021.

15 Re McPhun, 30 Fed. 57.

the defects therein may be supplemented by other proof.16 It was held under a treaty with Switzerland, that original papers, such as forgeries, which were identified by witnesses who gave the depositions in the foreign country, need not be produced before the commissioner.17 The usual method of proving the identity of the prisoner is by the oral testimony of a witness from the country which demands him; but his identity may be proved by his admission and otherwise.18 Commissioner Alexander held that identification by a photograph was sufficient. The commitment was set aside upon another ground. Testimony taken in another proceeding before the immigration authorities is inadmissible.19 Circumstantial evidence of the commission of the offense may be sufficient.20 "The evidence to detain a party, for the purpose of surrender, must be sufficient to commit the party for trial, if the offense was committed here. The admonition in Grotius is not to be forgotten-non decet homines dedere causa non cognito.' ,, 21 The accused has the right to call witnesses in his defense, 22 and to testify in his own behalf,23 but it has been said that he cannot offer, on his own behalf, depositions taken abroad.24

16 Re Wadge, 15 Fed. 864; s. c., 16 Fed. 332, 21 Blatchf. 300; Re McPhun, 30 Fed. 57, 63; Re Benson, 34 Fed. 649.

17 Re Farez, 7 Blatchf. 345, 8 Fed. Cas. No. 4,645, 2 Abb. U. S. 364, 40 How. Pr. (N. Y.) 107

18 Re Charleston, 34 Fed. 531. See Ex parte Geissler, 196 Fed. 168 (where the writer was counsel).

19 Ex parte La Mantia, 206 Fed. 330.

20 Re Bryant, 80 Fed. 282. For a case where the discovery of a stolen calf and poultry on the farm of the accused the day after the theft after a posse of unfriendly people had been in possession during the intervening time and had previously failed to find them was held to be insufficient evidence to justify the extradition. Ex parte La Page, 216 Fed. 256.

21 Chancellor Kent in Matter of Washburn, 4 J. Ch. 106, 114. See, also, Pettit v. Walshe, 194 U. S. 205, 24 Sup. Ct. 657, 48 L. ed. 938 (affirming 125 Fed. 572); Wright v. Henkel, 190 U. S. 40, 23 S. Ct. 781, 47 L. ed. 948; Re Frank, 107 Fed. 272; Re Ezeta, 62 Fed. 972; Re Muller, 17 Fed. Cas. No. 9,913, 5 Phila. (Pa.) 289; U. S. v. Warr, 28 Fed. Cas. No. 16,644, 3 N. Y. Leg. Obs. 346; Matter of Calder, 2 Edmonds' Select Cases (N. Y.) 374, 376. 22 Re Kelley, 25 Fed. 268.

23 Re Farez, 7 Blatchf. 345, 8 Fed. Cas. No. 4,645, 2 Abb. U. S. 364, 40 How. Pr. (N. Y.) 107.

24 Re Wadge, 15 Fed. 864; s. c., 16 Fed. 332, 21 Blatchf. 300. See Oteiza v. Jacobus, 136 U. S. 330, 10 S. Ct. 330, 34 L. ed. 464.

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